This spring, the coronavirus pandemic has upended college and university life, as campus classes, dormitories, and social activities have been abruptly displaced by online instruction. As exams and graduation ceremonies proceed virtually this month, some schools are announcing plans to cancel or delay the fall semester or to run it partly or entirely online. On May 6th, amid this chaos and uncertainty, Betsy DeVos’s Department of Education issued its regulations on Title IX, which impose new legal requirements on how schools must conduct their discipline processes for sexual harassment and assault.
Immediately, prominent civil-rights attorneys expressed outrage. Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and the assistant secretary for civil rights in Obama’s Education Department, tweeted that DeVos is “taking us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” Fatima Goss Graves, the president and C.E.O. of the National Women’s Law Center, wrote, “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.” In a statement, Nancy Pelosi called the new regulations “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.”
It was unclear, however, precisely what aspects of the regulations were so extreme and alarming. Uncharacteristically for the Trump Administration, the Education Department, in crafting the regulations, engaged with a large range of public comments and concerns—from schools, advocates for survivors, and advocates of due process—and the regulations reflect that engagement. They are not exactly as I would wish, but they clarify the rights of both victims and the accused in a way that is likely to lead to improvements in basic fairness. The suggestion that even the most controversial provisions of the regulations allow rape with impunity speaks to a disturbingly large gap between reality and rhetoric on the topic—one that is particularly important to address, so students do not get the false sense that they should not bother to report assaults.
Title IX, passed in 1972, prohibits sex discrimination by schools that receive federal funding. In past decades, the Education Department has established, in a series of guidance documents, that sex discrimination includes sexual harassment, which in turn includes sexual assault, and that schools must address those offenses as a matter of sex equality. In 2011, the Obama Administration issued what is known as a “Dear Colleague Letter” to the nation’s colleges and universities, amid troubling reports of a prevalence of sexual assault on campuses and growing activism by students, who decried their schools’ neglect of the problem. The letter told schools to “take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.” One of its concrete instructions was that schools must use the “preponderance of the evidence” standard (that is, a greater-than-fifty-per-cent chance that a claim is true) rather than a higher standard, such as “clear and convincing evidence,” to determine whether an incident of sexual harassment or assault occurred.
More than any specific commands, the government’s threat to withdraw federal funding from schools that did not comply with its Title IX guidance caused schools to attempt to please the government, by devising new practices, policies, and procedures that aimed to make it easier for victims to report assaults and to prevail in campus complaints. Soon, some advocates of fair process, among them law professors at Harvard (myself included), the University of Pennsylvania, and Cornell, raised concerns that the pressure to protect victims had led to an overcorrection: accused students were facing expulsion or suspension without fair procedures to defend against disciplinary charges. In many cases, accused students were not being given the complaint or identities of witnesses, and not being shown the evidence or the investigative report. Since 2011, hundreds of accused students have sued their schools for using unfair disciplinary procedures, and have won court judgments or received settlements. Courts have held that, just as it is sex discrimination under Title IX for schools to treat female victims of sexual assault unfairly, it can also be sex discrimination under Title IX to treat males accused of sexual misconduct unfairly.
In 2017, DeVos announced the launch of a rule-making process on Title IX and withdrew the Obama-era guidance on sexual violence. The following year, the agency issued a proposed rule, which emphasized procedural fairness. Then, over the past two and a half years, it considered more than a hundred and twenty thousand comments from the public on the rule before releasing its final regulations—and also two thousand pages of careful explanations for the choices the agency made. The regulations will become legally binding on August 14th, in time for the new school year.
The new regulations free schools to do some things that previously were prohibited or understood to be disfavored. The Obama Administration clearly stated its belief that compliance with Title IX required the use of the preponderance standard for sexual-harassment cases, because any higher standard would, by design, tilt toward the accused. The new regulations allow schools to choose between the preponderance standard or the higher “clear and convincing evidence” standard, which would demand heavier proof to find that the accused is responsible. But, because schools are not required to shift away from their current use of the preponderance standard, it will be surprising if many do. Prior guidance had discouraged schools from using informal resolution, such as mediation, for sexual-assault allegations, but the new regulations allow schools to offer the option, as long as the accused is not an employee, both parties voluntarily agree to it, and the process is led by a trained facilitator. There is a legitimate worry that schools could pressure victims into informal processes, which cost less than formal ones. But many victims who might not report sexual misconduct, owing to a reluctance to unleash a lengthy investigation or a harsh penalty, may be more willing to seek the school’s help because of the availability of an informal option. And many accused students, who might fight the acceptance of responsibility in an adversarial or punitive framework, may be more willing to give a desired apology and make amends.
The permission to use informal methods poses something of a counterbalance to the over-all increase in procedural formality that the regulations prescribe. Though the Trump Administration’s agencies are generally known for deregulatory impulses, the Education Department has in some ways taken the opposite tack here, imposing more elaborate obligations than before. The most basic is that schools must employ a presumption of innocence, on which the Obama-era guidance was silent. Many schools have adopted the principle that they “start by believing” the alleged victim. That assumption may now be illegal. Many schools have also been using a streamlined “investigator-only” process, in which one person, often a Title IX administrator, acts as both investigator and decision-maker: that person interviews witnesses, examines evidence, and decides whether the accused is responsible for the alleged misconduct. The new regulations prohibit that, on the view that it is fairer to separate the roles of investigation and adjudication. Many schools have not used a live hearing in front of the decision-maker as part of their disciplinary process, possibly because of its costliness and a desire to avoid stressful confrontation, but the new rules require colleges and universities to provide a live hearing, and to allow parties and witnesses to participate virtually if they wish.
Among the more controversial questions about Title IX procedures has been whether a live hearing should include an opportunity for cross-examination. In the years since DeVos’s rule-making process began, multiple federal and state courts have held that universities must allow cross-examination in disciplinary cases for sexual misconduct as a matter of either constitutional due process or contractual basic fairness, particularly because decisions often hinge on evaluations of credibility. The Obama-era guidance specifically discouraged allowing parties to personally cross-examine each other, out of concern that “allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating.” The new regulations acknowledge that concern, and forbid the parties questioning each other, but they require schools to allow each party’s “advisor”—who may be an attorney—to pose questions to the opposing party, reasoning that “the truth-seeking function of cross-examination can be achieved while mitigating any re-traumatization of complainants.” To minimize the risks, the person running the hearing must exclude any questions that are not “relevant”; parties must be allowed to participate from separate rooms, using technology; and schools must “oversee cross-examination in a manner that avoids aggressive, abusive questioning.”
There is no simple resolution to the matter of how, if at all, students in a sexual-assault disciplinary case can be fairly and sensitively cross-examined. On the one hand, allowing a party to question the other side’s story to try to expose its flaws seems essential to being heard and revealing the truth. On the other hand, cross-examination is very difficult to pull off productively outside a courtroom, without judges and trial lawyers trained in rules of evidence. It seems to me that a compromise, such as having each side submit questions in writing for the decision-maker to ask aloud at the hearing, would have been a less fraught way to accomplish the goal of using questions to test credibility.
Perhaps the most controversial element of the new regulations is the definition of “sexual harassment” that schools are required to enforce—though, of course, they may choose to do more. The new definition, from a Supreme Court case on Title IX, includes unwelcome conduct that a reasonable person would find “so severe, pervasive, and objectively offensive” that it denies a person equal educational access. Some public comments (including one that I submitted, with feminist law-professor colleagues) zeroed in on the narrowness of “severe, pervasive, and objectively offensive,” and urged the department to replace it with “severe or pervasive,” in keeping with the Supreme Court’s workplace-harassment standard—given that a sexual assault may be severe but not pervasive, and some sexual or sexist remarks may be pervasive but not severe. The final regulations kept the more demanding standard, but, in response to critics, they now make clear that a single instance of sexual assault does constitute sexual harassment. Nevertheless, it still leaves uncovered some verbal conduct that doesn’t rise to the level of “severe, pervasive, and objectively offensive.” In its explanation, the department points to the fact that educational environments may need to strike a different balance than workplaces with regard to free speech and expression. That is plausible, but “severe or pervasive” would still have been the more appropriate balance.
Many critics concerned about protecting victims raised strong objections to a proposed provision about how the agency would determine whether a school responded adequately to sexual-harassment complaints. Using language from a Supreme Court case, the proposed rule said that the agency would not find that a school violated Title IX unless the school had “actual knowledge” of a sexual-harassment allegation and showed “deliberate indifference”—meaning that it responded in a way that is “clearly unreasonable in light of the known circumstances.” Addressing outcry that this standard was shockingly forgiving of schools’ possible negligence, the department made some changes. In the final rule, the phrase “deliberate indifference” apparently doesn’t mean what it seems to mean, because the rule sets out extensive, detailed obligations that schools must fulfill in response to complaints of sexual harassment or assault, including supportive measures for alleged victims. This, too, is something of a victory for critics, though retaining the words “deliberate indifference” is misleading and inflammatory—it would have been better simply to tell schools they must respond reasonably to harassment that they should have known about. Finally, a school’s legal obligation to investigate does not extend to incidents outside of the school’s “program or activity”—such as in an independent, off-campus residence. After considering objections that this was underinclusive, given the prevalence of off-campus social events, the agency now also requires schools to investigate incidents occurring in places controlled by recognized student organizations, such as fraternity and sorority houses.
Predictably, reactions to the Title IX rule-making have split across partisan lines. Democrats have denounced the regulations as silencing victims, allowing schools to turn a blind eye to abuse, and stripping students of their civil rights. Republicans have praised them for reinstating essential due-process rights for the accused. This put the presumed Democratic Presidential candidate, Joe Biden, in a tricky position—DeVos’s rule-making process was completed just as Tara Reade’s allegation of sexual assault against Biden was being widely reported. The former Vice-President, who previously had been somewhat dismissive of the rights of the accused in campus sexual-assault cases, shifted his rhetoric to say that alleged victims’ “stories should be subject to appropriate inquiry and scrutiny,” while at the same time vowing a return to the Obama-era guidance that inspired investigations which did not emphasize fairness. Biden has promised “a quick end” to the new regulations should he be elected President. But, because the regulations are binding law, a President cannot simply undo them—it would take another lengthy and involved agency process, like the one that just concluded, or an act of Congress.
In the meantime, we can expect lawsuits. On Thursday, the A.C.L.U. filed the first, on behalf of several educational-advocacy groups, claiming that the agency’s actions are “arbitrary and capricious,” and inconsistent with the Title IX statute. There are reasonable disagreements to be had over what policy choices best serve students, survivors, accused individuals, and schools, but they don’t necessarily amount to legal defects. The A.C.L.U. has objected to the regulations’ too-narrow “sexual harassment” definition, the too-lax “deliberate indifference” standard, and the “clear and convincing evidence” standard that the regulations allow. But it has also announced its support for the new requirement of a live hearing with cross-examination, the opportunity to delay Title IX proceedings when parties face imminent criminal investigation, the right of access to evidence, and the right to have written decisions addressing the evidence. With some reservations about cross-examination, I agree that these basic fairness requirements are good ones.
Agencies are legally obligated to present a bloodless accounting of the costs of new regulations. The Education Department initially said that the regulations would lead to significant savings for schools, assuming that, worryingly, there would be a reduction in the number of Title IX cases owing to a narrowing of what must be investigated. But the process of responding to public comments caused the agency to add many costs, including the cost of schools being required to offer various supportive measures to alleged victims. And the additional procedural obligations will be expensive to implement. In the final regulations, the agency acknowledges that there will be more costs than savings from the new regulations, projecting more than three hundred million dollars in increased costs in the coming year alone. The expense will be painful at a time when many educational institutions face financial devastation, and some may even be in danger of shutting down for good. This week, DeVos issued a document telling schools that, even while instruction is suspended or conducted online during the COVID-19 crisis, they must continue to accept and investigate sexual-harassment complaints, including harassment on online platforms. She promised to say more soon on how the new regulations will apply to “schools that have not resumed normal operations” in the fall. The realities of governing perhaps will force a recognition that campus life may look very different going forward, which in turn will shape what harassment can look like. Campuses, classrooms, and dormitories may be emptied of students and faculty, but Title IX marches on.
